Since Anyone Who Makes An Agreement

Whereas when a contract is silent, a court must essentially make an informed decision as to the existence of a right of termination, when a contract looks at the case, it is the general direction of the courts to follow the wishes of the parties. The authors of the former Goods Sale Act 1893 have distinguished the terms „conditions“ (important concepts that confer a right of termination in the event of an infringement) and „guarantees“ (minor conditions that do not) and, under the present Goods Sale Act 1979, certain concepts, such as quality descriptions, are standard terms. [239] A third species is an „unnamed“ term, which is typically a vague term, such as citrus sweaters „in good condition“[240] or a vessel that must be „in a state of navigation“. Since such a notion could be violated both significantly (for example. B in submarines) and trivially (for example. B a lifejacket is missing), the court will decide whether the right to terminate is based on the actual seriousness of the consequences of the offence. At Hong Kong Fir, Lord Diplock felt that a crew too incompetent to operate the vessel properly did not seriously violate the „airworthiness“ of the contract to allow termination, since the charterers would always have obtained a boat that was working and could have replaced the crew. When a contract determines that a particular obligation is a „condition,“ the dominant approach of the courts is to treat it as such. Nevertheless, concerned about the ability of a stronger party to specify the terms it finds most convenient as „conditions“ to the detriment of the weaker, the courts retain the ability to interpret an agreement against proferentum.

In L Schuler AG v. Wickman Machine Tool Sales Ltd,[241] the majority of the House of Lords considered that Article 7 of the contract was „a condition of that agreement“ that Mr. Wickman visit six major automobile companies „at least once a week“ to try to sell disc machines, not a real condition in the technical sense of the term. So when it turned out that Mr. Wickman had been much less frequented, Schuler AG could not dismiss him. Article 11 stated that 60 days of warning were required before Schuler AG could terminate the contract, so that the entire contract, read together, means that Article 7 is subject to Article 11.